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TMI Blog1956 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... proached the plaintiff-respondent Bhawani Shanker Bhargaya, a relation, for investing some money in the business of H. Bevis Co. The respondent paid a certain sum either to the appellant, or at his suggestion, to Messrs. H. Bevis Co. For the recovery of the money remaining due to the respondent he instituted the suit which has given rise to this appeal on the allegation that the money advanced by him was a loan to the appellant. The proprietors of the concern H. Bevis and Co. were also impleaded as pro forma defendants. 3. The appellant and Messrs. H. Bevis Co., contested the suit. H. Bevis Co.'s plea was that there was no privity of contract between them and the respondent and consequently there was no liability on them to make any payment to him. The appellant's plea was that he had never borrowed money from the respondent, that the latter was taken as a partner in the investment and that the liability to pay rested with H. Bevis Co. 4. In support of this case that the advances made by the respondent were not loans to him but were loans to Messrs H. Beyis Co., the appellant produced certain letters written by the respondent as containing admissions by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is made by any of the persons, and under the circumstances, hereinafter mentioned. 9. Under Section 21 of the said Act admissions are relevant and may be proved as against the person who makes them or his representative in interest. 10. The defendant-appellant produced The letters written by the respondent as containing his admission which supported the defendant-appellant in the case set up by him. Prima facie, therefore, this was a case of admissions as to a fact in issue and as such the admissions were relevant and could be proved under Section 21. 11. Under Order 12, Rule 2. Civil P C either party may call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice the costs of proving any such document shall be paid by the party so neglecting or refusing whatever the result of the suit may be, unless the Court to be in form No. 9 given in Appendix C with such variations as circumstances may require, but in practice in the Courts in this State no such written notice is given and instead, documents are produced before the counsel of the opposite party for admission or denial and the counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing or reduced into writing, which has not been proved already. The words, without such writing being shown to him or being proved in the first part of the section and before the writing could be proved in the second part of the section, go to establish that the section does not contemplate a previous statement which has already been proved in the record under some other provision of law. It will also be noticed that the section prohibits the use of a previous statement of the witness for the purpose of contradicting his evidence on oath. It does not deal with the question of proving a party's case by the admission of the opposite party. That subject is dealt with in Section 21. 17. An admission of the opposite party to the proceeding may be produced for the purpose of proving a party's own case. It is the best evidence which can be produced in proof of the party's case, and although the proof of such admission is not conclusive against the opposite party, nevertheless it is such strong evidence of the facts admitted that the burden of proving the contrary is upon the party making the admission. He can do this only when he gives a satisfactory explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a witness by his previous statement without bringing the statement to the notice of the witness and affording an opportunity to him to tender his explanation as to why he made the previous statement or to clear up the point of ambiguity or dispute. Where, therefore, a previous statement of a witness, be he a party or a stranger to the case, is not already proved on the record under some other provision of law but is intended to be proved in the case only for the purpose of contradicting the witness, the principle of fairness as embodied in Section 145 requires that before his admission can be proved the attention of the witness must be drawn to the passage in his statement by which it is intended to contradict him. But where the witness is a party to the case and his previous admission has already been produced in the case to his knowledge or to the knowledge of his counsel who is his agent for the purpose of the case and it has been proved against him either by the writing having been admitted by him or his counsel or by some other proof, then no question of unfairness can arise. If an admission is sought to be used against him, then the admission having been already brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dev Harihar Pandit was the main contesting defendant in the case. The will of Shri Vasudev Harihar Pandit permitted the widow to adopt a boy, and the trustees were to carry on the management of the estate until the boy attained majority. A boy was selected and the widow wrote a letter to the boy's natural father agreeing to take the boy in adoption. These proceedings were commenced on the 27th of June, but were completed on the 28th. It was alleged on behalf of the plaintiffs that the boy was put on the lap of the widow in performance of the requisite essential for adoption, but the formal ceremonies and festivities were postponed to take place afterwards. The widow alleged that the boy was not put on her lap, and that therefore the actual giving and taking ceremony was not performed. Mr. Tilak, one of the trustees, wrote out a full account of the transaction, which was recorded in the minutes, and the trustees who had not taken part in the proceedings were communicated with, to the effect that the adoption had been completed. These minutes and the letters which were written on the occasion to the other trustees were put in evidence, probably by the plaintiffs to prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating this, they went on to observe that the High Court, was guilty of a serious irregularity in procedure, in that they had relied upon certain statements and written documents and omissions without these statements and omissions being put to the witnesses. They observed that on general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute and that : This is a general, salutary and intelligible rule, and where a witness's reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear. Then they further observed that the law of India as enacted in Section 145 also pronounced upon the same matter. They expressed regret and surprise that the general principle and the specific statutory provisions have not been followed. The verdict of the High Court is an inferential verdict nonetheless sweeping on that account--but an inferential verdict actually of perjury. What are the premises upon which this inference proceeds? In no inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n proof of the defendant's case. They were relied on merely as falsifying the witnesses. That case is, therefore, no authority for the proposition contended for on behalf of the respondents and cannot be said to have overruled the law laid down in ILR All 184 (C). It must be confined to its own particular facts. 29. This view finds support from the observations of the Patna High Court in Ramkeshwar Das v. Baldeo Singh In that case, after referring to the decision in the Bal Gangadhar Tilak's case (A), the Court, referring to an admission of a party which had been proved in the case, held that : It is an admission which goes to the root of the case, which is relevant under Section 21, Evidence Act; and its relevancy is not affected by the question of whether the defendant may or may not have given evidence consistent with the statement contained in it. If it had been a document which had no relevancy apart from the fact that it contradicted statements made by the defendant, when he was in the witness-box, it could have been necessary to observe strictly the provisions of Section 145... In Lal Singh Didar Singh v. Guru Granth Sahib, AIR 1951 Pepsu 101 (F) it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his earlier admission will be taken as establishing the adversary's case, then it does not stand to reason that this rule is abrogated by the mere fact that a party has entered the witness-box and made a statement inconsistent with the previous statements without explaining as to how and under what circumstances he had made the earlier statement. As already stated, a mere contradictory statement on oath cannot be said to be an explanation of the circumstances under which the previous admission was made, and the duty cast upon the party to explain his previous admission cannot be said to have been satisfactorily discharged unless he offers an explanation, and as the duty is on him to offer an explanation, there is no reason why it should be the duty of the opposite party to ask for his explanation by putting the previous statement to him. 33. The learned Judges of the Lahore High Court construed the decision in Bal Gangadhar Tilak's case (A), as laying down the proposition that without complying with the procedure laid down in Section 145, the admission contained in his previous statement cannot be used as legal evidence against a party. But as shown above, the Privy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the accused on the other. 42. In Wigmore on Evidence (Vol IV para 1051) it has been observed : An admission is logically useful against the party in the same way as a prior self-contradiction against a witness, and its admissibility rests partly on that ground. It follows that certain deductions from this principle have a parallel application to the present sort of evidence, notably in respect to implied admissions, and to explanations of the admissions. But there are two respects in which the distinction between a witness' self-contradictions and a party's admissions becomes important. (1) The rule requiring that the witness must have been warned when on the stand, and asked whether he had made the statement about to be offered as a self-contradiction has always been understood not to be applicable to the use of a party's admission, i.e., they may be offered without warning to the party. It is not necessary to state the other exception. 43. Then the reasons for the rule are stated : firstly, because the opponent may not in fact take the stand, and thus no opportunity for asking him would arise, and, secondly, because the only object of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g such explanation as he might desire to offer. This rule of fairness can have no application when a clear and unambiguous statement of a party has been already proved on the record and the party appearing as a witness already knows that his previous statement is relied upon by his opponent in support of his own case. (6) Where, however, a statement of a party is ambiguous or vague so that it cannot be said that he has notice that such statement is being relied upon by his opponent as his admission, the rule of fairness comes into play and such party's oral evidence will not be allowed to be contradicted by his vague and ambiguous previous statement unless it was specifically put to him while he was in the witness box so that he might tender an explanation regarding the statement and in these circumstances though such statement may have been admitted under Section 21, Evidence Act it will be deemed to have been disproved by a contrary statement on oath of the party making the admission . 45. I would, therefore, answer the questions referred to us as follows : Question No. 1. Where in a civil suit a party produces documents containing admissions by his opponent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant fact. In addition, whenever the admission suggests an inference as to a fact in issue, it can be used for the purpose of determining the burden of proof of that fact. The burden of proof of a fact in issue is ordinarily determined by reference to the other provisions of the Indian Evidence Act but there can be cases where an admission of a party may have the effect that, even though ordinarily the burden of proof of the fact in issue would be on one party, it may shift to the other party which made the admission on proof of the admission. Section 21, Evidence Act declares admission to be relevant and further provides that they may be proved against the person who makes them, or his representative in interest. This section permits proof of admissions and, when proved, the admissions can be used for the various purposes indicated by Section 17, Evidence Act, as mentioned above. The question, that has to be considered, is how far the use of the admissions under Section 17, Evidence Act is affected by the provisions of Section 145, Evidence Act. In considering the effect of Section 145, it. is clear that one of the purposes, for which an admission can be used under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de which of the two statements made by the same person is true and reliable. The statement made in Court is on oath whereas the admission may or may not be on oath. Section 145 requires that the statement made on oath is not to be contradicted by a previous statement unless the attention of the witness is drawn to it and he is given an opportunity on oath either to admit it or deny it and give his explanation as to why he made the previous contradictory statement. I am unable to see any reason why the scope of Section 145 should be held to be limited so as to exclude cases where the previous statement happens to be a statement of a party amounting to an admission. No doubt, Section 21 makes a provision that admissions may be proved against a person or his representative in interest but under this section enabling proof of admissions cannot be read as being independent of all other provisions of the Indian Evidence Act and the limitation placed on the right of proving the previous statement of a witness laid down in Section 145 must be held to govern the power of proving an admission under Section 21 also. 48. The point of view expressed by me above explains the apparent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial verdict--none the less sweeping on that account--but an inferential verdict actually of perjury. What are the premises upon which this inference proceeds? In no inconsiderable degree they consist of documents, statements, even turns of expression, which are used to confound the spoken word. Had the safeguards set up by the law with respect to the use of documents been observed? Not at all. Not only have documents been used for the purpose of contradicting witnesses without obeying the injunctions prescribed by law, but the inference thus derived, and improperly derived, from the documents has resulted as stated, in an inferential verdict of perjury. It will be noticed that the use of the documents by the High Court was for two different purposes. One was the purpose of contradicting witnesses and the other for drawing an inference that the witnesses had committed perjury. Their Lordships of the Privy Council objected to the use of the previous statements for either of these two purposes without complying with the provisions of Section 145, Evidence Act and with the general principle enunciated by them which was held to have been given statutory form in India by Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was proposed to be To show that Raja Makund Singh is the adopted son of Raja Kishan Singh, and that in this mukhtarnama (power of attorney) Raja Makund Singh has described himself as the adopted son of Kishan Singh. Their Lordships held that, as a result of the mention of the object for which the documents were being filed, there could be no ground for the suggestion that the plaintiffs were not fully informed that this question of adoption would be raised, and that one, if not both, of these documents would be relied upon to prove the admissions of Makund Singh upon this question of adoption contained in them. It was further held that, indeed, that was the only purpose for which they could have been given in evidence in those suits. Subsequently, Makund Singh was himself examined by interrogatories in the suit. When Makund Singh was thus examined, his admissions contained in the two documents mentioned above were not brought to his notice nor was he called upon to give any explanation for those admissions. Their Lordships of the Privy Council then proceeded to consider the effect of those admissions and remarked: The learned Chief Justice in his judgment points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its effect on the admissibility or proof of the admissions. In my opinion, therefore, this decision of their Lordships of the Privy Council does not support the proposition that, in the case of an admission, it is not necessary for a party making use of it to draw the attention of the party, who made the admission, under Section 145, Evidence Act, before using it for the purpose of contradicting his oral testimony in Court. Since their Lordships were not using the admissions for contradicting the oral testimony given in Court, it was also not at all necessary for them to refer to their views expressed in the earlier case of Bal Gangadhar Tilak (A), cited above. 50. It, however, appears to me that there may also be causes where the admissions contained in an earlier document may not contradict the evidence of the witness given on path in Court and may yet provide useful evidence in respect of a fact in issue or a relevant fact. In such a case also, the use of the admissions as substantive evidence in the case may be permissible without drawing in cross-examination the attention of the maker of the admissions to those admissions. Section 145, Evidence Act only conies into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the objection was taken at the very early stages and explain as to what led him to make this admission. In the absence of any such explanation the value of this admission is rather enhanced. I have already indicated above my reasons for not agreeing with this view. On the other hand, I respectfully agree with Mahajan J., in AIR 1946 Lah 65 (FB) (B) where he expressed the view that it is only where the party goes into the witness box and makes a statement inconsistent with the previous statement that a duty is cast by the provisions of Section 145, Evidence Act, on his opponent to confront him with his statement inconsistent with the statement made in Court, and if he does not do it at that stage then those previous statements can no longer be used as legal evidence to contradict his evidence. In my opinion, this decision of Mahajan J., is, in no way, in conflict with the decision of the Privy Council in Chandra Kunwar's case (C) cited above. 52. I may also refer to a decision of their Lordships of the Supreme Court in Tara Singh v. The State [1951]2SCR729 . That case is not directly in point as it did not deal with the effect of Section 145, Evidence Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawing in cross-examination the attention of the opponent, when appearing as a witness, makes no statement at all contradictory to the admissions contained in the documents but if the opponent, in his statement in Court, gives evidence contradicting that contained in the admissions, the admissions cannot be used as substantive evidence unless his attention is drawn in cross-examination to those admissions . Mirza Nasir Ullah Beg, J. 54. The two questions to a large Bench and the facts and circumstances put of which the said questions have arisen are given in the judgment of my learned brother Agarwala J. It is not, therefore, necessary for me to recapitulate them. The answer to the two questions will depend on the reply to the short question as to whether the provisions of Section 21, Evidence Act are in any way controlled by the provisions of Section 145 of the said Act. Having given my earnest consideration to this matter, I find it difficult to persuade myself to agree with the view that Section 21, Evidence Act is, in any way, controlled, restricted or modified by Section 145, Evidence Act. 55. It appears to me that the argument that the latter section controls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on the party against whom they are set up. Unlike judicial admissions, however, they are binding only partially and not fully, except in cases where they operate as or have the effect of estoppel in which case again they are fully binding and may constitute the foundation of the rights of the parties (vide Section 31, Evidence) Act). 58. In the Evidence Act extra-Judicial admissions are dealt with in Chapter II which deals with the relevancy of facts . Section 17, Evidence Act defines an admission - as a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and under the circumstances hereinafter mentioned. Sections 18 to 20 specify the circumstances and the conditions under which statements made by a party or other persons, for example, an agent of a party or a person having proprietary or pecuniary interest in the subject-matter of proceedings, or a predecessor-in-interest of a party or by a person whose position must be proved as against any party to the suit, or by a person expressly referred to by a party to the suit for information may be treated as an admission. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re contemplated by Section 145, Evidence Act. Further, no such restrictions are in any Way to be traced within the four corners of Chapter II which deals exhaustively with, the relevancy of facts provable in a case. Any such limitations therefore, if sought to be fastened on Section 21 by the provisions of a far-flung section like Section 145 which finds its place in Chapter X and deals with the examination of witnessed must, therefore, be shown to be justified by express words of limitation contained in the section itself or by necessary implication arising therefrom. An examination of Section 145, however, shows that there are no such express words of limitation contained therein. It is significant that although Section 145, Evidence Act is itself a self-contained section defining exhaustively and in detail its own amplitude, the conditions under which it can be invoked and the mode and procedure of proof of the evidence that it seeks to import, yet it contains no express reference to Section 21 at all. On the other hand, an examination of its provisions indicates that the entire trend of this section is to leave the provisions of Section 21 untouched. A deeper exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his book on Evidence, Vol. IV, (Edn. 3) para. 1048 at p. 3. The witness speaks in Court through his testimony only, and hence his testimony forms the sole basis upon which the inconsistency of his other statement is predicated. But the party-opponent, whether he himself takes the stand or not, speaks always through his pleadings and through the testimony of his witness put forward to support his pleadings; hence the basis upon which may be predicated a discrediting inconsistency on his part includes the whole range of facts asserted in his pleadings and in the testimony relied upon by him. No doubt an admission may be and can be used to contradict a party when he appears as a witness, and confusion, therefore, is likely to arise by virtue of this fact. The fact, however, that an admission can be used to contradict a party as a witness, does not mean that it was intended to be filed for that purpose. The words intended to contradict are to be differentiated from the words used to contradict. The fact that an admission may be used to contradict a witness does not mean that it was filed for that purpose. Admissions may be said to have a double purpose. Their main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contradictions by other witnesses). We simply set the two against each other, perceive that both cannot be correct, and immediately conclude that he has erred in one or the other, but without determining which one. It is the repugnancy and inconsistency that demonstrate his error, and not the superior credibility of the prior statement. On the other hand, the effect of producing admission evidence is far more definite and defined. Admission evidence touches the truth and the falsehood of the facts adduced by a party in his pleadings or in his evidence. Whereas Section 145 is intended merely to apply to evidence which would enable a party to argue that a witness is unreliable because there is an obvious contradiction between the two statements, admission evidence would enable a party to argue that a witness is untrue, because the facts which he has deposed to are contradictory to the facts stated by him previously. In other words, an argument based upon admission evidence invites the Court to throw out the statement made by the witness in Court on the ground that it is false or untrue. On the other hand, an argument based on Section 145 cannot entitle a party to go so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, fully within the plaintiff's knowledge from the very inception. It was in face admitted on his behalf. The plaintiff, therefore, had full opportunity of explaining it if he so chose. On the other hand, the words before the writing can be proved in Section 145 show that the contradictory statement is for the first time produced at this stage and is not even prayed upto that time. The party being present or deemed to be present throughout the proceedings is cognizant or, at any rate, is presumed to be cognizant of everything that goes on in the case. The result is that as soon as admission evidence is adduced, its knowledge is in law automatically brought home to him. Admission evidence is, as it were, flung in the face of a party, and its mere production constitutes from that very moment a standing challenge to the opponent to come forward and meet it by offering an explanation in respect of it, if he has the courage to do it, and if he is fortified by truth in his favour. Moreover, a party is not only cognizant of the proceedings in the case, but is also able to control the proceedings. He has, therefore, full opportunity of not only explaining the damaging piece of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be put in. If Section 145, Evidence Act controls Section 21, then the conflict of principles governing the importation of two kinds of evidence might lead to inconsistency. Take, for example, a case where a party appears as a witness and makes a statement contradicting only a part of his previous statement which is admission. If Section 145 applies, then only that specific portion of his previous statement should be admissible which is contradictory and with which he is confronted even though, according to the principles governing admission evidence, the whole evidence should be considered. 6. Form of evidence under Sections 145 and 21, Evidence Act, may differ. An application of Section 145 to Section 21 might result in another inconsistency. Section 145 is applicable only if the previous statement is in writing or reduced into writing. On the other hand, as Section 17 itself states, an admission might be either oral or documentary. Section 145 would not. therefore, in terms apply to oral admissions. Further, admissions might also be by conduct or even by silence, and admissible under Section 8. Evidence Act. Strictly, Section 145 will not apply to this kind of admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be inadmissible only in a case where a party did appear in evidence and having appeared and having made a statement inconsistent with his previous admission was yet not con. fronted with the previous admission. This argument obviously involves a series of inconsistencies. The same evidence would be admissible in the first, two cases, but not in the third case. Moreover, the result of accepting this argument would be that the same evidence which was perfectly admissible upto a certain stage in the same case would become quite inadmissible after a certain stage. Thus, if a party did not appear in a case in the trial Court and the case went up in appeal and it was remanded from appeal; and, at that stage, the party appeared in the case, and made a statement inconsistent with the admission set up against him, and was not confronted with his previous admission, the position would be that the same statement which was fully admissible in the prior stage of the case and even in appeal, would suddenly become inadmissible from the stage at which the said party appeared in the witness-box after remand and made an inconsistent statement. It does not appear to be logical that admissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burden lies is to be performed by the party on whom the burden does not lie. It is for the party who is under the bounden duty to discharge the burden to offer an explanation of his own accord. It is not for the party on whom no such burden lies to extort or to extract an explanation from the party whose admission it has produced. Once it is held that it is the duty of the party relying on the admission to compel the other party to offer an explanation, then the natural and logical corollary of this position is to go a step further and to hold that where the opponent does not appear the said party should also be under an obligation to summon him in evidence and then to confront him with his own admission a step which he can only take after getting him declared as a hostile witness. It would have to be conceded that this cannot be the law. Thus the acceptance of the contrary view would not only result in the complete inversion of the rule relating to the burden of proof which governs all admissions, but would also lead to situations which are logically untenable. 63. It is next argued that the rule of confrontation might not apply in a case where the party does not appear a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in Court and the other made previously out of Court, there can be no question of competition between the two. They cannot stand on equal footing. If a choice has to be made, there is every reason to prefer the self-harming statement made out of Court to the self-serving one made in Court. The one made in Court is an interested statement after the controversy has arisen. It is made post litem motam. It is hardly of any value. It is obviously a self-regarding statement of a highly interested person made to subserve the immediate purposes of his own case. The previous statement of the party which was made at an anterior date is certainly entitled to a greater weight, as it was made before the controversy had arisen. It was made ante-litem motam. The minds of the parties at that time were not blinded by the bias generated by the case, nor were their hearts polluted by the self-interest created by it. Under the circumstances. I do not think that the position is in any way improved by the party coming in evidence and making a self-serving inconsistent statement. If at all, the position is aggravated. 64. One thing, however, is important to note in this connection. In order tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the party might be taken by surprise and condemned unheard. 65. Reference may now be made to the relevant law on the above subject. The most important pronouncement in support of the view propounded above is contained in a judgment of their Lordships of the Privy Council reported in ILR All 184 (C). In that case the plaintiff Mukund Singh came to Court with the allegation that he was the son of Partab Singh, and as such entitled to the estate through him. Partap Singh was natural father. The defendant sought to defeat the claim of the plaintiff by producing two deeds--one a deed of gift and the other a power of attorney--both executed by him. Both these deeds contained clear admissions by the plaintiff Mukund Singh showing that he was the adopted son of Kishan Singh elder brother of Partap Singh. Mukund Singh came in evidence and set up a case inconsistent with the clear admissions contained in the said deed. He was not, however, cross-examined on the contents of the said deeds by the party relying on those admissions, nor was he confronted with them when in the witness box.. In spite of it, the defendant in her arguments utilised these admissions to destroy the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistent with his previous admission, Section 145, Evidence Act would apply to that case. This argument assumes that in the said case their Lordships of the Privy Council considered the oral evidence of Mr. B. G. Tilak inconsistent with his previous statement. A perusal of the ruling, however, shows that this assumption is based on a misapprehension of the exact findings of their Lordships of the Privy Council. Their Lordships in that case did not hold that the oral statements of Mr. B. G. Tilak made in Court were in any way inconsistent with his previous statements. The findings of their Lordships on this aspect of the case are as follows : As already stated, the testimony of plaintiff's witnesses is not contradicted orally, and is internally a consistent body of evidence. But various minutes and documents are the subject of minute analysis, observation and comment by the learned Judges of the High Court with a view to rebutting it. Their Lordships think it right to observe that in view of the serious nature of the verdict of the High Court, they have considered it within their province themselves to peruse the documents. Having done so, they are of the opinion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (at p. 11) The words 'doubtful' and 'point of ambiguity' have been underlined (here into ' ' by me as they form the crux of the above observations and should not to be ignored in this connection. It is, therefore, obvious that the observations of their Lordships of the Privy Council were obiter; and, even if accepted, were made on the assumption as to what would be the position if the documents were to be treated as ambiguous or doubtful. This case cannot, therefore, be treated as an authority for the proposition that when a party witness makes an inconsistent statement in his evidence, a duty is cast upon the party producing the admission to confront him with it. Read as a whole, the observations of their Lordships should be confined to the case where the previous statement is considered to be ambiguous or doubtful. Nowhere in the body of the judgment of their Lordships of the Privy Council is there any reference to Section 21, Evidence Act. a reference to Section 21 is only to be found in the course of the arguments of the counsel and proceedings of the case as noted by the reporter of the case. In any case, for the above reasons this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll admissions. (Wigmore, Edn. 3, Vol. 4, para 1050 p. 7). Admissions and confessions are pieces of evidence of a seriously self-damaging type. They cannot be extracted from the words of a party couched in cloudy or ambiguous form or from language of doubtful import. 70. Reference in this connection might also be made to Corpus Juris Secundum. Vol. 31, para 277, at page 1029, where under the heading Certainty the law relating to admissions in this regard ' is enunciated as follows : An admission should possess the same degree of certainty as would be required in the evidence which it represents, and hence mere conjectures or suggestions as to what might have happened if certain circumstances had not occurred are not competent; neither should an alleged admission be considered where the 'subject matter to which it refers is left uncertain.' It is not necessary that the statement should be a direct admission; it may be an indirect admission, as where it bears on the issue incidentally or circumstantially. A statement is not competent as an admission where it does not, under a reasonable construction, appear to admit or acknowledge the fact which is soug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following observations : It may be mentioned that the document relied Upon to contradict the evidence of Mr. Tilak and Mr. Khaparde were certain letters in which expressions had been used which led to an admission on their part that there had been no real giving and taking of the boy in adoption and the adoption was incomplete. (at p. 69) Further, referring to the case of their Lordships of the Privy Council, it was observed that : Lord Shaw took the view that those provisions could not make the previous statements and admissions of a party legal evidence in the case unless the general, salutary and intelligible rule of law incorporated in Section 145, Evidence Act, had been followed and the attention of the party who had appeared as a witness in the case was drawn to specific portions of the previous statements made by him which amounted to admissions and went contrary to his spoken word in the witness-box. In fact, as I have shown above, the clear finding of their Lordships of the Privy Council was that Mr. Tilak's oral evidence did not go contrary to his previous statement; on the other hand, it was fully corroborated by his previous statement. 73. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns are ordinarily admissible as original or substantive evidence of the truth of the statements made or of the existence of fact which they tend to establish while they may be used to impeach or contradict the testimony of the party who made them, their admissibility does not depend on, nor should their effect be confined to, their tendency to do so. In the subsequent portion the same law is explained as follows : Admissions are ordinarily admissible as original or substantive evidence of the truth of the statements made or of the existence of any facts which they have a tendency to establish, and their admissibility is not dependent on any tendency to discredit the person by whom they were made. Of course, where the party who has made, the admissions testifies, and the admissions are contradictory to or inconsistent with his testimony, the admissions are competent for the purpose of discrediting and impeaching him, although they should not be limited to the purpose of discrediting. (pp. 1027 1028) . 77a. The statement of law on the point contained in the 'Wigmore on evidence' is to the same effect. In the said book, in reference to the rule of confrontation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, but also to the pleadings of Mukund Singh. The argument, therefore seems to overlook the real substance and effect of the findings given by their Lordships of the Privy Council in that case. 82. Lastly, strong reliance is placed on a ruling of their Lordships of the Supreme Court reported in [1951]2SCR729 . This case is obviously distinguishable. The question in this case arose in a criminal matter in which certain witnesses had appeared in the Sessions Court. These very witnesses had made some statements in the Court of the committing Magistrate which were contradictory to the statements made by them in the Sessions Court. The question before their Lordships was whether it was necessary to confront these witnesses with their previous statements under Section 145, Evidence Act before their evidence could be used as substantive evidence under Section 288, Criminal P. C. The answer given by them was in the affirmative. It is obvious that these witnesses were not parties to the case and their statements could not be treated as an admission. Further, it is to be remembered that Section 288, Criminal P. C. is a special provision designed to transmute what would ordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this class of evidence. 4. To hold otherwise would be to contravene the well recognised rule that admissions shift the onus of proving the contrary on the party against whom they are set up. 5. The position of a party-witness is quite different from that of an ordinary witness. The reasons that exist for laying the foundation of forewarning before contradicting an ordinary witness do not apply to the case of a party-witness at all. There is no justification, therefore, for extending the application either of the statutory or even the equitable rule of confrontation which applies to an ordinary witness to the case of a party-witness. 6. The acceptance of the contrary view leads to inconsistencies and difficulties, and results in situations which on the face appear to be unreasonable and illogical. 7. The view taken herein is strongly supported by the decision of their Lordships of the Privy Council reported in ILR All 184 (C)', and is a necessary corollary to the principle laid down therein to the effect that admissions shift onus. It is also supported by the principles accepted in countries like England and America where analogous rules of evidence prevai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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